645 F.

2d 100

Frank A. VICARETTI, Jr., Petitioner-Appellant,

v.
Robert J. HENDERSON, Superintendent, Auburn
Correctional
Facility, Respondent-Appellee,
and
Lawrence T. Kurlander, Intervenor-Appellee.
No. 965, Docket 79-2186.

United States Court of Appeals,

Second Circuit.
Argued April 1, 1980.
Decided July 21, 1980.
On Motion for Rehearing April 2, 1981.

Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and

GOETTEL,* District Judge.
NEWMAN, Circuit Judge:

This motion for rehearing calls into question the propriety of this Court's
occasional practice of limiting the grounds of an appeal to one or more
specified issues when issuing a certificate of probable cause to permit appeal
from denial of a state prisoner's petition for habeas corpus. 28 U.S.C. 2253
(1976). Appellant's pro se petition for habeas corpus relief to challenge his state
court conviction for first degree rape was denied by the District Court for the
Western District of New York (Harold Burke, Judge). A panel of this Court
granted petitioner's motion for issuance of a certificate of probable cause,
limited to the issue of whether petitioner's constitutional rights had been denied
by comments to the prosecutor during summation. Upon consideration of that
issue, this panel affirmed the District Court's judgment in an order. No. 792168, July 21, 1980, 633 F.2d 208. Appellant then sought rehearing, pointing
out the lack of explicit statutory authority for a limited certificate of probable
cause and asking for review of all of his claims.

The practice of issuing limited certificates of probable cause in connection with

habeas corpus appeals has been used in several circuits, without discussion.
United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (9th Cir. 1972); Nelson v.
Moore, 470 F.2d 1192, 1194 n.1 (1st Cir. 1972), cert. denied, 412 U.S. 951, 93
S.Ct. 3017, 37 L.Ed.2d 1003 (1973); Johnson v. Bennett, 386 F.2d 677, 678
(8th Cir. 1967), vacated on other grounds, 393 U.S. 253, 89 S.Ct. 436, 21
L.Ed.2d 415 (1968); United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427
(2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961).
The Third Circuit has ruled against the power to limit the certificate, United
States ex rel. Hickey v. Jeffes, 571 F.2d 762, 765-66 (3d Cir. 1978), and the
First Circuit has expressed its doubts on the matter. Haller v. Robbins, 409 F.2d
857, 858 n.1 (1st Cir. 1969). The Third Circuit emphasized in Hickey the lack
of explicit authority for the practice and also pointed out the undesirability of
permitting a single judge, who has authority to issue the certificate, to limit the
issues that may be considered by a Court of Appeals panel. Even where the
limitation was imposed by a panel, the Third Circuit thought it inadvisable to
bind the panel hearing the appeal, lest that second panel be obliged to dispose
of the appeal on the designated issue, which might involve a novel
constitutional claim, whereas examination of the entire record might reveal a
ground for reversal based on settled doctrine.

We do not find the absence of explicit authority in 2253 dispositive. The

Supreme Court has faced a similar issue in exercising its discretionary authority
to grant writs of certiorari to review cases in federal courts of appeals, 28
U.S.C. 1254(1) (1976), and certain judgments of state courts, 28 U.S.C.
1257(3) (1976). Even though the absence of explicit issue-limiting authority
stands in sharp contrast to the authority to review specific questions certified to
the Supreme Court by a Court of Appeals, 28 U.S.C. 1254(3) (1976), the
Supreme Court has frequently issued writs of certiorari limited to one or more
specific issues. E. g., Marchetti v. United States, 385 U.S. 1000, 87 S.Ct. 698,
17 L.Ed.2d 540 (1967); Berger v. New York, 385 U.S. 967, 87 S.Ct. 505, 17
L.Ed.2d 432 (1966); Bostick v. South Carolina, 385 U.S. 813, 87 S.Ct. 81, 17
L.Ed.2d 53 (1966); Washington v. Texas, 385 U.S. 812, 87 S.Ct. 123, 17
L.Ed.2d 54 (1966).

Though the standards for the exercise of the Supreme Court's certiorari
authority differ from those applicable to issuance of a certificate of probable
cause, compare Sup.Ct.Rule 19 with Alexander v. Harris, 595 F.2d 87, 90-91
(2d Cir. 1979); see also Urbano v. Sondern, 370 F.2d 13, 14 (2d Cir. 1966) (in
forma pauperis appeal), both practices involve a court's sensible attempt to
focus the attention of the litigants on the issues that merit review under the
relevant standard. A similar practice exists with respect to granting leave to

appeal in forma pauperis, 28 U.S.C. 1915(a) (1976). E. g., Daye v. Bounds,

509 F.2d 66 (4th Cir.), cert. denied, 421 U.S. 1002, 95 S.Ct. 2404, 44 L.Ed.2d
671 (1975); Lathrop v. Oklahoma City Housing Authority, 438 F.2d 914 (10th
Cir.), cert. denied, 404 U.S. 840, 92 S.Ct. 132, 30 L.Ed.2d 73 (1971); Savage v.
Hadlock, 296 F.2d 417 (D.C.Cir.1961); see also Reese v. Ricketts, 534 F.2d
1180 (5th Cir. 1976) (in forma pauperis appeal and certificate of probable cause
limited); Bolden v. Clemmer, 298 F.2d 306 (D.C.Cir.1961) (same).
5

We share the Third Circuit's concern that one judge of a Court of Appeals, who
is authorized to issue a certificate of probable cause, should not be able to
preclude a panel of three judges from considering the petitioner's claims.
However, our response to that concern is not to prohibit limited certificates of
probable cause, but to recognize their authoritativeness in limiting issues only
when acted upon by a three-judge panel. Even in that circumstance, we do not
view the limitation as jurisdictional, but more akin to a ruling entitled to be
considered as the law of the case. See United States v. Fernandez, 506 F.2d
1200 (2d Cir. 1974). As such, the limitation is normally to be respected by the
panel that considers the merits of the appeal, but the panel would always have
authority to broaden the scope of the appeal if persuaded that such further
consideration would be "just under the circumstances." 28 U.S.C. 2106
(1976).

In this case, we find no compelling reasons to broaden the scope of review

beyond the one issue specified when the prior panel issued a certificate of
probable cause. Accordingly, the motion for rehearing is denied.

GOETTEL, District Judge (concurring and dissenting):

For the reasons stated in my concurring opinion on the decision of this appeal, I
dissent from the conclusion of the Court that there is no compelling reason to
broaden the scope of review beyond the issue specified by the panel that issued
the certificate of probable cause.

With respect to the remainder of the decision, which authorizes the limitation of
issues certified for appeal, but allows the panel that hears the appeal to broaden
the scope if persuaded that such would be just, I concur in the result, but
without much confidence in the legal precedent cited. It is true that this Court,
in Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979), equated the issuance
of certificates of probable cause with the Supreme Court's granting of certiorari,
as being a sensible attempt to focus on issues meriting review. In my opinion,
however, that decision was deficient in failing to observe the at least facially

different standard set forth under the then new Rules Governing Section 2254
Cases. Rule 4 provides for summary dismissal "(i)f it plainly appears from the
face of the petition and any exhibits annexed to it that the petitioner is not
entitled to relief." The Court equated that with the frivolous claims standard
used in judging petitions when appealed. It is submitted that it is possible (as
occurred in Alexander v. Harris ) to have a petition that is not frivolous, but
plainly appears not to entitle the petitioner to relief. It occurred in that case
because a scholarly state court opinion had thoroughly disposed of the
petitioner's claims, so that the disposition of the petition was certain, although
the issue was not frivolous.
10

Moreover, analogy to the Supreme Court's certiorari practice is not particularly

helpful, since it is not clear where the Supreme Court obtains that power. At
common law, a writ of certiorari entailed a review of the entire record from the
lower court. See 1 W.S. Holdsworth, A History of English Law 228 (3d ed.
1922). The statute covering certiorari allows the Supreme Court to grant or
deny the writ, but makes no reference to limiting the writ to specific questions.
28 U.S.C. 1254(1). (In contrast, 28 U.S.C. 1254(3) specifically allows a
circuit court to certify only certain questions for review by the Supreme Court.)

11

Regardless of the absence of specific procedures or authority, appellate courts

should have the inherent discretion to limit issues heard on appeal where a
certificate of probable cause is required. It seems that there are few serious state
felony convictions that do not eventuate in federal habeas corpus petitions.
Virtually all unsuccessful petitioners attempt to appeal. Where appeal is
allowed, a court appointed attorney (paid by the federal government) is usually
assigned. The enormous burden on the federal courts must be alleviated, while
at the same time preserving access to the courts for the petitioner with a valid
grievance. One way of accomplishing this is by retaining the power of the
appellate courts to restrict the issues on appeal to those that are worthy of being
heard. Consequently, I concur in principle with the rule enunciated by the Court
and dissent only from its application to this particular case.

The Honorable Gerard L. Goettel of the United States District Court for the
Southern District of New York, sitting by designation